Deviate sexual intercourse

In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, resided. The officers observed Lawrence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody overnight, and charged and convicted before a Justice of the Peace. The complaints described their crime as "deviate sexual intercourse, namely anal sex, with a member of the same sex (man)." Texas Penal Code Ann. § 21.06(a) (2003) provides that a person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex. The statute defines deviate sexual intercourse as any contact between any part of the genitals of one person and the mouth or anus of another person, or the penetration of the genitals or the anus of another person with an object. The petitioners exercised their right to a trial de novo in Harris County Criminal Court. They challenged the statute as a violation of the Equal Protection Clause of the Fourteenth Amendment and of a like provision of the Texas Constitution. Those contentions were rejected. The petitioners, having entered a plea of nolo contendere, were each fined $200 and assessed court costs of $141.25. The Court of Appeals for the Texas Fourteenth District considered the petitioners' federal constitutional arguments under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. After hearing the case en banc the court, in a divided opinion, rejected the constitutional arguments and affirmed the convictions. The majority opinion indicates that the Court of Appeals considered our decision in Bowers v. Hardwick, 478 U.S. 186 (1986), to be controlling on the federal due process aspect of the case. The Supreme Court granted certiorari to consider three questions. The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual.

In order to combat child pornography, Ohio enacted Revised Code Annotated section 2907.323(A)(3). The statute prohibits any person from possessing or viewing material or a performance that shows a minor who is not the person's child or ward in a state of nudity, unless certain exceptions for bona fide purposes or parental consent apply. Columbus, Ohio police officers conducted a valid search of petitioner Clyde Osborne's home and found four photographs. Each photograph depicts a nude male adolescent posed in a sexually explicit position. Osborne was convicted of violating the statute and sentenced to six months in prison. An intermediate appellate court affirmed Osborne's conviction. The Supreme Court of Ohio likewise affirmed. Relying on its construction of the statute, the Ohio Supreme Court rejected Osborne's claim that the First Amendment prohibits states from proscribing private possession of child pornography. The court also found that the statute, as narrowed to require a lewd exhibition or graphic focus on the genitals, is not unconstitutionally overbroad. The court held that scienter is an essential element of the offense. Osborne objected that the trial judge had not required the government to prove lewd exhibition and scienter as elements of the crime. The Ohio Supreme Court rejected these contentions because Osborne had failed to object to the jury instructions at trial and the court did not believe the failures amounted to plain error. The Ohio Supreme Court denied a motion for rehearing and granted a stay pending appeal. The United States Supreme Court noted probable jurisdiction in June 1989.

In September 1994 the city council of Erie, Pennsylvania, enacted Ordinance 75-1994. The ordinance made it a summary offense to knowingly or intentionally appear in public in a state of nudity. It defined nudity to include the showing of human male or female genitals, pubic area, buttocks, or female breast below the top of the areola as well as any device simulating those areas. Pap's A. M., a Pennsylvania corporation, operated an establishment known as Kandyland in Erie that featured totally nude erotic dancing performed by women. After the ordinance took effect, the dancers began wearing pasties and G-strings to comply with its requirements. On October 14, 1994, Pap's filed a complaint in the Court of Common Pleas of Erie County against the city, the mayor, and members of the city council. The complaint sought declaratory relief and a permanent injunction against enforcement of the ordinance. The trial court granted the injunction and struck down the ordinance as unconstitutional. On cross-appeals the Commonwealth Court reversed the trial court's order. The Pennsylvania Supreme Court granted review and reversed again, holding that the public nudity provisions violated Pap's rights to freedom of expression under the First and Fourteenth Amendments. The city petitioned for a writ of certiorari, which the United States Supreme Court granted. Pap's then filed a motion to dismiss the case as moot on the ground that Kandyland was no longer operating as a nude dancing club and Pap's was not operating such a club at any other location. The Supreme Court denied the motion.

On November 21, 1973, Troy Gregg and Floyd Allen were hitchhiking north in Florida when they were picked up by Fred Simmons and Bob Moore in their car. Their car broke down. Simmons purchased another vehicle with some of the cash he was carrying. While still in Florida, the group picked up Dennis Weaver, who rode with them to Atlanta, where he was let out about 11 p.m. A short time later the four men stopped for a rest along the highway in Gwinnett County, Georgia. The next morning the bodies of Simmons and Moore were discovered in a nearby ditch. On November 23, after reading about the shootings in an Atlanta newspaper, Weaver communicated with the Gwinnett County police and related information concerning the journey with the victims, including a description of the car. The next afternoon, Gregg and Allen, while in Simmons' car, were arrested in Asheville, North Carolina. In the search incident to the arrest a .25-caliber pistol, later shown to be that used to kill Simmons and Moore, was found in Gregg's pocket. After receiving Miranda warnings and signing a written waiver, Gregg signed a statement admitting he shot Simmons and Moore but claiming self-defense. At the guilt stage of the bifurcated trial, a medical examiner testified that Simmons died from a bullet wound in the eye and that Moore died from bullet wounds in the cheek and in the back of the head. The examiner further testified that both men had several bruises and abrasions about the face and head. Gregg testified claiming self-defense after Simmons and Moore allegedly attacked with a pipe and knife, but the jury convicted him of two counts of armed robbery and two counts of murder. At the penalty stage before the same jury, neither side presented additional evidence. The trial judge instructed the jury that it could recommend either a death sentence or a life prison sentence on each count. The judge further charged the jury that in determining the sentence it was free to consider mitigating or aggravating circumstances. The judge instructed that death could not be imposed unless the jury found beyond a reasonable doubt one of the aggravating circumstances. The jury found the first and second aggravating circumstances and returned verdicts of death on each count. The Supreme Court of Georgia affirmed the convictions and the death sentences for murder after reviewing the record and comparing the sentences to similar cases, but it vacated the death sentences for armed robbery. The United States Supreme Court granted certiorari limited to the challenge to the death sentences under the Eighth and Fourteenth Amendments.

The Pennsylvania legislature adopted the Mandatory Minimum Sentencing Act in 1982. The statute applies to persons convicted of enumerated felonies including third-degree murder, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery, aggravated assault, and kidnapping. Under the Act a sentencing judge must impose a minimum term of five years' imprisonment upon finding by a preponderance of the evidence that the defendant visibly possessed a firearm during commission of the offense. The judge considers trial evidence plus any additional evidence offered by the parties at the sentencing hearing. The Act does not increase the statutory maximum penalty for the underlying felony. Petitioner McMillan was convicted by jury of aggravated assault after shooting his victim in the right buttock during an argument over a debt. Petitioner Peterson was convicted after a bench trial of voluntary manslaughter after shooting and killing her husband. Petitioner Dennison was convicted after a bench trial of aggravated assault after shooting and seriously wounding an acquaintance. Petitioner Smalls was convicted after a bench trial of robbery after holding up a seafood store at gunpoint. In each case the Commonwealth provided notice before sentencing that it would seek application of the Act. The four sentencing judges each held the Act unconstitutional and imposed sentences below the five-year minimum. The Commonwealth appealed all four cases to the Supreme Court of Pennsylvania, which consolidated them and upheld the statute. The United States Supreme Court granted certiorari to review the constitutional challenges.